Experts in Territory, Location & Field Force Optimisation

Technologies4Targeting Limited (Tech4T) – Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1  In these Conditions the following definitions apply:

Business Day: any week day, other than a bank or public holiday in England;

Business Hours: between 09:00 and 17.30 London time on a Business Day;

Change: any change to the terms of the Contract;

Charges: the amounts payable by the Client to the Provider under or in relation to the Contract as set out in the Proposal;

Client: the person or firm who purchases Services from the Provider;

Client Confidential Information:

(a)  any information disclosed whether disclosed in writing, orally or otherwise by the Client to the Provider that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential;

(b)  the terms and conditions of the Contract; and

(c)  the Client Materials;

Client Materials: all works and materials:

(a)  uploaded to, stored on, processed using or transmitted via the System by or on behalf of the Client or by any person or application or automated system using the Client’s account; and

(b)  resulting from processing using the System; and

(c)  otherwise provided by the Client to the Provider in connection with the Contract;

Commencement Date: has the meaning set out in clause 2;

Confidential Information: the Client Confidential Information and the Provider Confidential Information;

Contract: the contract between the Provider and the Client for the supply of the Services and System in accordance with these terms and conditions including the Schedules, the Service Level Agreement and the Proposal, and any amendments to the Contract from time to time;

Control: the legal power to control (directly or indirectly) the management of an entity and “Controlled” will be construed accordingly;

Customisations: customisations to the System that the Provider and Client agree the Provider will produce on behalf of the Client;

Data Protection Legislation:  the Data Protection Act 1998 or 2018 or any successor legislation and the General Data Protection Regulation (EU) 2016/679 and any other directly applicable European Union regulation relating to privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK);

Data Subject: an individual who is the subject of Personal Data

Defect: a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the System, but excluding any defect, error or bug caused by or arising as a result of:

(a)  an act or omission of the Client, or an act or omission of one of the Client’s employees, officers, agents, suppliers or sub-contractors; or

(b)  an incompatibility between the System and any other system, application, programme or software not specified as compatible in the Proposal and/or the Service Level Agreement;

Documentation: the documentation produced by the Provider and supplied to the Client specifying how the System should be used;

Force Majeure Event: an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law or any regulations, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Intellectual Property Rights: all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, and rights in designs);

Minimum Term: the period specified as such in the Proposal;

Proposal: the document agreed between the parties that specifies the identity of the Client, and other matters relating to the supply of the Services and the System;

Permitted Purpose: the products and services that are ordered by the Client under the Proposal or other method for which the System may be used and whether paid for or not by the Client;

Personal Data: has the meaning given to it in Data Protection Legislation from time to time in force in the UK;

Processor: any person or organisation that is not a data user that processes personal data on our behalf and on our instructions

Professional Services: services provided to the Client including data services, analysis and modelling, mapping, territory design, location planning, customer targeting and sales force optimisation

Provider: Technologies4Targeting Ltd (Tech4T) a company incorporated in England and Wales registration number 4358643 having its registered office at 48 Broadway, Peterborough, PE1 1SB, United Kingdom;

Provider Confidential Information:

(a)  any information disclosed (whether disclosed in writing, orally or otherwise) by the Provider to the Client that is marked as “confidential”, described as “confidential” or should have been understood by the Client at the time of disclosure to be confidential;

(b)  the terms and conditions of the Contract;

Schedule: a schedule attached to the Contract;

Services:

(a)  the online web-based applications and platform provided by the Provider via t4tsystems.co.uk and/or other designated websites that are part of the Territory Runner system as described in the Documentation, including associated offline components; and

(b)  the Support Services; and

(c)  the Professional Services;

Support Services: support and maintenance services provided or to be provided by the Provider to the Client in accordance with the Service Level Agreement;

System: the software system known as Territory Runner or other name notified to the Client that is owned and operated by the Provider, and that will be made available to the Client as a service via the internet;

 System Suppliers: all persons other than the Provider who own Intellectual Property Rights in the Software or who have licence rights in the Software or any part or parts of it and which licence rights are superior to the rights of the Provider;

Term: the term of the Contract;

Third Party Terms: the terms, conditions and legal notices applicable to third party content and services provided as part of the Services including without limitation data hosting, data provision and Bing Maps.  Bing Maps Terms of Service are located at http://www.microsoft.com/Maps/product/terms.html as such may be updated from time to time or made available at a different URL. Data hosting is provided by Paragon Internet Group trading as Tsohost and is subject to Tsohost Terms and Conditions as outlined at https://www.tsohost.com/legal/new-terms-and-conditions-1 as updated from time to time or made available at a different URL. Where an alternative hosting provider is used the Client will be provided with the Terms and Conditions of that provider.

Upgrades: new versions of, and updates to, the System, whether for the purpose of fixing an error, bug or other issue in the System or enhancing the functionality of the System.

1.2 In the Contract, a reference to a statute or statutory provision includes a reference to:

(a)  that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)  any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of the Contract.

1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Contract.Contract and Term

2. CONTRACT AND TERM

The Contract will come into existence upon the Client’s acceptance of the Proposal (Commencement Date) and will continue in force for the Minimum Term and indefinitely thereafter, unless terminated in accordance with Clause 14

3. THE SYSTEM

3.1 The Provider will make available the System to the Client by providing to the Client login details as soon as practicable.

3.2 Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, the Provider hereby grants to the Client a non-exclusive licence to use the System for the Permitted Purpose via web browsers as listed from time to time by the Provider in accordance with the Documentation during the Term.

3.3 The licence granted by the Provider to the Client under Clause 3.2 is subject to the following limitations:

(a)  the System must not be used at any point in time by more than the number of concurrent users specified in the Proposal or any agreed amendment;

(b)  the System may only be used by the employees, agents and sub-contractors of the Client;

(c)  the Client must comply at all times with the terms of the Acceptable Use Policy set out in Schedule 1 and must ensure that all users of the System agree to and comply with the terms of that Acceptable Use Policy.

3.4 Except to the extent mandated by applicable law or expressly permitted in the Contract, the licence granted by the Provider to the Client under this Clause 3 is subject to the following prohibitions:

(a)  the Client must not sub-license its right to access and use the System or allow any unauthorised person to access or use the System;

(b)  the Client must not frame or otherwise re-publish or re-distribute the System;

(c)  the Client must not alter or adapt or edit the System save as expressly permitted by the Documentation.

3.5 For the avoidance of doubt, the Client has no right to access the object code or source code of the System, either during or after the Term.

3.6 All Intellectual Property Rights in the System shall, as between the parties, be the exclusive property of the Provider.

3.7 The Client shall use all reasonable endeavours to ensure that no unauthorised person will or could access the System using the Client’s account.

3.8 The Client must not use the System in any way that causes, or may cause, damage to the System or impairment of the availability or accessibility of the System, or any of the areas of, or services on, the System.

3.9 The Client must not use the System:

(a)  in any way that is unlawful, illegal, fraudulent or harmful; or

(b)  in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4. SUPPORT SERVICES AND UPGRADES

4.1 During the Term the Provider will provide the Support Services to the Client in accordance with the Service Level Agreement.

4.2 During the Term the Provider and the System Suppliers will apply Upgrades to the System. The Client acknowledges and agrees that any part of the Territory Runner System may be amended from time to time during the continuance of this Contract provided however that where any such changes require Territory Runner System downtime or will substantially affect the operability of the System, the Provider will endeavour to give the Client reasonable notice.

4.3 The Provider may sub-contract the provision of any of the Support Services and Professional Services without obtaining the consent of the Client, unless the Client expressly requires prior consent which has been agreed in writing with the Provider.

4.4 The Provider may without notifying the Client make any changes to the System which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the System.

5. CLIENT OBLIGATIONS

5.1 The Client must provide all Client Materials required to provide the Services to the Provider in the formats and at the timescales set out in the Proposal or as otherwise agreed.

5.2 If the Client does not comply with Clause 5.1, the Provider can terminate the Contract.

5.3 The Provider is not liable for any delay or failure to provide the Services if this is caused by the Client’s failure to comply with the provisions of this section.

6. CUSTOMISATIONS

6.1 From time to time the Provider and the Client may agree that the Provider will customise the System in accordance with a specification agreed between the parties.

6.2 From the date when a Customisation is first made available to the Client, the Customisation shall form part of the System under the Contract, and accordingly from that date the Client’s rights to use the Customisation shall be governed by Clause 3.

6.3 The Client acknowledges that the Provider may make any Customisation available to its other Clients following the making available of that Customisation to the Client.

6.4 All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider.

6.5 The Client will provide the Provider with:

(a)  such access to the Client’s computer systems and such other co-operation as is required by the Provider (acting reasonably) to enable the performance by the Provider of its obligations under this Clause 5;

(b)  all information and documents required by the Provider (acting reasonably) in connection with the performance by the Provider of its obligations under this Clause 6; and

(c)  any advice reasonably required to ensure the compliance of the Customisations with applicable laws, regulations and standards.

6.6 The Client will be responsible for procuring any third party co-operation reasonably required by the Provider to enable the Provider to fulfil its obligations under this Clause 6.

7. THIRD PARTY SERVICES

7.1 The Client acknowledges that the Services may include the content and services of third parties including without limitation data hosting, data provision and Bing Maps and that the Client’s use of all such third party content and services is subject to the third party terms. By entering into this Contract and using the Services, the Client confirms that it understands and accepts all relevant third party terms.

8. CLIENT MATERIALS

8.1 The Client grants to the Provider during the Term a non-exclusive licence to store, copy and otherwise use the Client Materials on the System for the purposes of operating the System, providing the Services, fulfilling its other obligations under the Contract, and exercising its rights under the Contract.

8.2 Subject to Clause 8.1, all Intellectual Property Rights in the Client Materials and any derivatives thereof, will remain, as between the parties, the property of the Client.

8.3 The Client warrants and represents to the Provider that the Client Materials, and their use by the Provider in accordance with the terms of the Contract, will not:

(a)  breach any laws, statutes, regulations or legally-binding codes;

(b)  infringe any person’s Intellectual Property Rights or other legal rights; or

(c)  give rise to any cause of action against the Provider or the Client or any third party,

in each case in any jurisdiction and under any applicable law.

8.4 Where the Provider reasonably suspects that there has been a breach by the Client of the provisions of this Clause 7, the Provider may:

(a)  delete or amend the relevant Client Materials; and/or

(b)  suspend any or all of the Services and/or the Client’s access to the System while it investigates the matter.

8.5 Any breach by the Client of this Clause 8 will be deemed to be a material breach of the Contract for the purposes of Clause 14.

8.6 The Provider shall ensure that the Client Materials stored and processed by the System are stored separately from, and are not co-mingled with, the materials of other Clients of the Provider.

9. CHARGES

9.1 The Provider will issue invoices for the Charges to the Client in accordance with the provisions of the Proposal.

9.2 The Client will pay the Charges to the Provider as stipulated on the Proposal or within 30 days of the date of issue of an invoice issued in accordance with Clause 9.1.

9.3 All Charges stated in or in relation to the Contract are stated exclusive of VAT, unless the context requires otherwise.  VAT (if applicable) will be payable by the Client to the Provider in addition to the principal amounts.

9.4 Charges must be paid by bank transfer using such payment details as are notified by the Provider to the Client from time to time.

9.5 If the Client does not pay any amount properly due to the Provider under or in connection with the Contract, the Provider may:

(a)  charge the Client interest on the overdue amount at the rate of 4% per annum above the base rate of the National Westminster Bank PLC’s base rate from time to time accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgement, and compounding quarterly; or

(b)  claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

9.6 The Provider may vary the Charges payable under the Proposal on any anniversary of the Commencement Date by giving to the Client not less than 60 days’ written notice of the variation, providing that no such variation will result in the relevant element of the Charges increasing during the Term by more than the percentage increase during the same period in the Retail Prices Index (all items) published by the UK Office for National Statistics.

9.7 The Provider reserves the right, by giving notice to and agreeing with the Client at any time before the provision or completion of the Services, to increase the fees payable for the Service to reflect any increase in cost to Tech4T which is:

(a)  due to any factor beyond the control of Tech4T (such as, without limitation, the effects of foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in third party costs; or

(b)  required as a result of the Client’s instructions or lack of instructions, the inaccuracy of or delay in providing Client Materials or otherwise needed to provide the Services, or any other cause attributable to the Client.

9.8 The Provider may suspend access to the System and the provision of the Services if any amounts due to be paid by the Client to the Provider under the Contract are overdue by more than 14 days.

10. WARRANTIES

10.1 The Client warrants to the Provider that it has the legal right and authority to enter into and perform its obligations under the Contract.

10.2 The Provider warrants to the Client:

the System (excluding for the avoidance of doubt the Client Materials) will not:

(a)  breach any laws, statutes, regulations or legally-binding codes;

(b)  infringe any person’s Intellectual Property Rights or other legal rights; or

(c)  give rise to any cause of action against the Provider or the Client or any third party,

in each case in England and Wales and under English law.

10.3 The Provider warrants to the Client that the System will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Proposal.

10.4 The Client acknowledges that:

(a)  complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the System will be wholly free from such defects, errors and bugs;

(b)  the Provider does not warrant or represent that the System will be compatible with any application, programme or software not specifically identified as compatible in the Proposal; and

10.5 All of the parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in the terms of the Contract.  To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract.

11. LIMITATIONS AND EXCLUSIONS OF LIABILITY

11.1 Nothing in the Contract will:

(a)  limit or exclude the liability of a party for death or personal injury resulting from negligence;

(b)  limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;

(c)  limit any liability of a party in any way that is not permitted under applicable law; or

(d)  exclude any liability of a party that may not be excluded under applicable law.

11.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in the Contract:

(a)  are subject to Clause 11.1;

(b)  govern all liabilities arising under the Contract or in relation to the subject matter of the Contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty;

11.3 Neither party will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

11.4 Neither party will be liable for any loss of business, contracts or commercial opportunities.

11.5 Neither party will be liable for any loss of or damage to goodwill or reputation.

11.6 Neither party will be liable in respect of any loss or corruption of any data, database or software.

11.7 Neither party will be liable in respect of any special, indirect or consequential loss or damage.

11.8 Neither party will be liable for any losses arising out of a Force Majeure Event.

11.9 The Provider’s liability in relation to any event or series of related events will not exceed the greater of:

(a)  £1000; and

(b)  the total amount paid and payable by the Client to the Provider under the Contract during the three month period immediately preceding the event or events giving rise to the claim.

11.10 The Provider’s aggregate liability under the Contract will not exceed the greater of:

(a)  £2500; and

(b)  the total amount paid and payable by the Client to the Provider in the preceding six months under the Contract for the applicable Services and/or System.

11.11 The Provider shall not be liable to the Client or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Provider’s obligations in relation to the System if the delay or failure was due to any cause beyond the Provider’s reasonable control.

11.12 The Provider shall use all reasonable endeavours to perform its obligations in accordance with any timescales set out in the Proposal but time shall not be of the essence in relation to the provision of the Services.

11.13 The Client acknowledges that the information (including but not limited to map boundaries and statistical data) accumulated for it by the Provider as part of the Services is derived from third party sources. The information shall be taken at the Client’s own risk and is not a recommendation or confirmation by the Provider that such information is accurate. The Provider shall not be responsible for any loss or damage incurred by the Client acting upon the information.

11.14 The Provider offers no guarantee or warranty as to the accuracy of the information. Any action of the Client arising in relation to the information is at the Client’s own risk and the Provider shall have no liability to the Client in respect thereof.

12.DATA PROTECTION

12.1  The Client warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Contract.

12.2 The parties acknowledge that:

(a)  the Client alone shall determine the purposes for which and the manner in which Personal Data (as defined in the Data Protection Legislation) is, or is to be, processed in the course of providing the System;

(b)  the Client shall be the data controller (as defined in the Data Protection Legislation) in respect of all Personal Data processed in the course of providing the System;

(c)  the Provider shall be the data Processor (as defined in the Data Protection Legislation) in respect of any Personal Data processed as required for providing the System.

12.3 The Client warrants to the Provider that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

12.4 The Client warrants to the Provider that it has sought all necessary consents of the Data Subjects under Data Protection Legislation, including the GDPR, to entitle the Provider to legally process the Personal Data as Processor for the client.

12.5 The Client shall indemnify the Provider against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Provider arising out of or in connection with any breach of the warranties contained in clauses 12.3 to 12.4.

12.6 The Client acknowledges that the Provider is reliant on the Client for direction as to the extent to which it is entitled to use and process the Personal Data. Consequently, the Client indemnifies the Provider against any claim brought by a Data Subject arising from any action or omission by the Provider, to the extent that such action or omission resulted directly or indirectly from the Client’s instructions.

12.7 The Client authorises the Provider to appoint third-party sub-contractors and sub-processors to process the Personal Data.

12.8 The Provider warrants that it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Client having regard to the nature of the Personal Data to be protected.

12.9 The Client acknowledges that it is solely responsible for notifying the relevant supervisory authority and the Data Subject(s) of any suspected data breach or breach of Data Protection Legislation in respect of the Personal Data. Consequently, the Client indemnifies the Provider against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Provider arising out of or in connection to any failure of the Client to notify the relevant supervisory authority or the Data Subject of a breach of Data Protection Legislation in respect of the Personal Data.

12.10 The Provider shall, unless otherwise agreed in writing, only process the Personal Data to the extent and in such manner as is necessary for the provision of the System or as is required by law or any regulatory body.

12.11 The Provider shall promptly notify the Client if it receives a request from a Data Subject (as defined in the Data Protection Legislation) to have access to Personal Data or any other complaint or request relating to the Client’s obligations under the Data Protection Legislation and provide full co-operation and assistance to the Client in relation to any such complaint or request (including, without limitation, by allowing Data Subjects to have access to their Personal Data).

12.12 Upon termination of the Contract (for any reason), the Client shall immediately notify the Provider whether it requires:

(a)  the Provider to return all the Personal Data at the expense of the Client within 30 days of termination of the Contract. The Client shall immediately confirm receipt of the Personal Data to the Provider. The Provider shall delete all copies of the Personal Data following confirmation of receipt of the Personal Data by the client; or

(b)  the Provider to delete all Personal Data as soon as reasonably practicable.

12.13 The Provider’s total liability arising under or in connection with its obligations under this clause, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the aggregate sum of the charges for the System incurred by the Client in the prior six months.

12.14 Either party may, at any time on not less than 30 days’ notice, revise this clause 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Contract).

13. CONFIDENTIALITY AND PUBLICITY

13.1 The Provider will:

(a)  keep confidential and not disclose the Client Confidential Information to any person save as expressly permitted by this Clause 13;

(b)  protect the Client Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and

13.2 The Client will:

(a)  keep confidential and not disclose the Provider Confidential Information to any person save as expressly permitted by this Clause 13;

(b)  protect the Provider Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

13.3 Confidential Information of a party may be disclosed by the other party to that other party’s officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed.

13.4 The obligations set out in this Clause 13 shall not apply to:

(a)  confidential Information that is publicly known (other than through a breach of an obligation of confidence);

(b)  client Confidential Information that is in possession of the Provider prior to disclosure by the Client, and Provider Confidential Information that is in possession of the Client prior to disclosure by the Provider;

(c)  client Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Client, from an independent third party who has a right to disclose the relevant Confidential Information; or

(d)  confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the party subject to such disclosure requirement must where permitted by law give to the other party prompt written notice of the disclosure requirement.

14. TERMINATION

14.1 Either party may terminate the Contract immediately by giving written notice to the other party if the other party:

(a)  commits any material breach of any term of the Contract, and:

(i)   the breach is not remediable; or

(ii)  the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or

14.2 Either party may terminate the Contract immediately by giving written notice to the other party if:

(a)  the other party:

(i)  is dissolved;

(ii)  ceases to conduct all (or substantially all) of its business;

(iii)  is or becomes unable to pay its debts as they fall due;

(iv)  is or becomes insolvent or is declared insolvent; or

(v)  convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)  an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)  an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract); or

(d)  (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs or is the subject of a bankruptcy petition or order.

(e)  any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 14.2(a) to 14.2(d) (inclusive)

14.3 The Client may terminate the Contract by giving notice in accordance with the Proposal.

14.4 If the Provider stops or makes a good faith decision to stop operating the System generally, then the Provider may terminate the Contract by giving at least 90 days written notice of termination to the Client.

14.5 The Provider may terminate the Contract immediately by giving written notice of termination to the Client where the Client fails to pay to the Provider any amount due to be paid under the Contract by the due date.

15. EFFECTS OF TERMINATION

15.1 Upon termination of the Contract, all the provisions of the Contract will cease to have effect, save that the following provisions of the Contract will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 9.5, 11, 13.1 to 13.4, 15 and 18.

15.2 Termination of the Contract will not affect either party’s accrued liabilities and rights as at the date of termination.

15.3 A party may retain any document (including any electronic document) containing Confidential Information of the other party after the termination of the Contract if:

(a)  that party is obliged to retain such document by any law or regulation or other rule enforceable against that party; or

(b)  the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the party retaining the document.

16. NOTICES

16.1 Any notice given under the Contract must be in writing (whether or not described as “written notice” in the Contract) and must be delivered personally, sent by post or email, for the attention of the relevant person, and to the relevant address or email address given below (or as notified by one party to the other in accordance with this Clause).

The Provider:

Technologies4Targeting Ltd

48 Broadway

Peterborough, PE1 1SB.

For the attention of the Managing Director

Email: finance@tech4t.co.uk

The Client:

The addressee, address, and email set out in the Proposal or on other documentation relating to the Contract.

16.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

(a)     where the notice is delivered personally, at the time of delivery;

(b)     where the notice is sent by post, 48 hours after posting; and

(c)     where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).

17. FORCE MAJEURE EVENT

17.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Contract, those obligations will be suspended for the duration of the Force Majeure Event.

17.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Contract, will:

(a)  forthwith notify the other; and

(b)  will inform the other of the period for which it is estimated that such failure or delay will continue.

17.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

18. GENERAL

18.1 No failure or delay by either party in exercising any of its rights under this Contract shall be deemed to be a waiver of that right, and no waiver by either part of any breach of this Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.

18.2 If a clause of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other clauses of the Contract will continue in effect.  If any unlawful and/or unenforceable clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant clause will be deemed to be deleted).

18.3 Nothing in the Contract will constitute a partnership, agency relationship or contract of employment between the parties.

18.4 The Contract may not be varied except in accordance with a written document signed by or on behalf of each of the parties.

18.5 The Client hereby agrees that the Provider may freely assign any or all of its contractual rights and/or obligations under the Contract to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time.

18.6 Neither party will, without the other party’s prior written consent, either during the term of the Contract or within 6 months after the date of effective termination of the Contract, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other party who has been involved in the performance of the Contract.

18.7 If there is any conflict between the terms of these Conditions and the Proposal, the terms of the Proposal shall apply.

18.8 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Contract.

18.9 Subject to Clause 11.1:

(a)  the Contract, the Acceptable Use Policy, the Service Level Agreement and the Proposal referred to in herein constitute the entire Contract between the parties in relation to the subject matter of the Contract, and supersede all previous contracts, arrangements and understandings between the parties in respect of that subject matter. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law;

(b)  neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Contract.

18.10 The Contract will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.

 

Schedule 1

Acceptable Use Policy

(1)     This Policy

This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web-based services (the “Service”) and any content that you may submit to the Service. The Policy may include rules to ensure that: (a) the network through which the Services are provided is not overloaded and that the security and integrity of the network is maintained and rules which arise from the need to comply with regulations of any data centre facility engaged by the Provider in connection with the Services; and (b) rules to ensure that any database or other applications which form part of the services are used to the best effect and within their capabilities. The Policy may be amended by the Provider from time to time.

By using the Service, you agree to the rules set out in this Policy.

(2)     General restrictions

You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.

You must not use the Service:

(a)  in any way that is unlawful, illegal, fraudulent or harmful; or

(b)  in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

(3)     Bandwidth Usage

The Provider’s data centre facility offers high data transfer. In rare cases, a Client may use server resources to such an extent that he or she may jeopardise server performance and resources for other Clients. In such instances, the Provider reserves the right at their sole discretion to take any reasonable action to resume the normal operation of the network.

(4)     Unlawful and illegal material

You must not use the Service to store, host, copy, distribute, display, publish, transmit or send material that is illegal or unlawful, or that will or may infringe a third party’s legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).

Material must not:

(a)  be libellous or maliciously false;

(b)  be obscene or indecent;

(c)  infringe any copyright, moral rights, database rights, trade mark rights, design rights, rights in passing off, or other intellectual property rights;

(d)  infringe any rights of confidence, rights of privacy, or rights under data protection legislation;

(e)  constitute negligent advice or contain any negligent statement;

(f)   constitute an incitement to commit a crime;

(g)  be in contempt of any court, or in breach of any court order;

(h)  be in breach of racial or religious hatred or discrimination legislation;

(i)   be blasphemous;

(j)   be in breach of official secrets legislation; or

(k)  be in breach of any contractual obligation owed to any person.

You must not submit any material that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

(5)     Harmful software

You must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, or any other harmful software, programs, routines, applications or technologies.

You must not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.

 (6)    Breaches of this Policy

Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:

(b)  send you one or more formal warnings;

(c)  temporarily suspend your access to a part or all of the Service; and/or

(d)  permanently prohibit you from using a part or all of the Service.

(7)     Banned users

Where we suspend or prohibit your access to the Service or a part of the Service, you must not take any action to circumvent such suspension or prohibition.

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